Who must consent to psychological treatment of a minor in New York?
Full Question:
Answer:
The following are NY statutes:
§ 22.11 Treatment of minors.
(a) For the purposes of this section, the word "minor" shall mean a
person under eighteen years of age, but does not include a person who is
the parent of a child or has married or who is emancipated.
(b) In treating a minor for chemical dependence on an inpatient,
residential, or outpatient basis, the important role of the parents or
guardians shall be recognized. Steps shall be taken to involve the
parents or guardians in the course of treatment, and consent from such a
person for inpatient, residential, or outpatient treatment for minors
shall be required, except as otherwise provided by subdivision (c) of
this section.
(c) Minors admitted for inpatient, residential or outpatient treatment
without parental or guardian involvement.
1. If, in the judgment of a physician, parental or guardian
involvement and consent would have a detrimental effect on the course of
treatment of a minor who is voluntarily seeking treatment for chemical
dependence or if a parent or guardian refuses to consent to such
treatment and the physician believes that such treatment is necessary
for the best interests of the child, such treatment may be provided to
the minor by a licensed physician on an inpatient, residential or
outpatient basis, a staff physician in a hospital, or persons operating
under their supervision, without the consent or involvement of the
parent or guardian. Such physician shall fully document the reasons why
the requirements of subdivision (b) of this section were dispensed
within the minor's medical record, provided, however, that for providers
of services which are not required to include physicians on staff,
pursuant to regulations promulgated by the commissioner, a qualified
health professional, as defined in such regulations, shall fulfill the
role of a physician for purposes of this paragraph.
2. If the provider of services cannot locate the parents or guardians
of a minor seeking treatment for chemical dependence after employing
reasonable measures to do so, or if such parents or guardians refuse or
fail to communicate with the provider of services within a reasonable
time regarding the minor's treatment, the program director may authorize
that such minor be treated on an inpatient, residential or outpatient
basis by the provider of services without the consent or involvement of
the parent or guardian. Such program director shall fully document the
reasons why the requirements of subdivision (b) of this section were
dispensed within the minor's medical record, including an explanation of
all efforts employed to attempt to contact such parents or guardians.
3. Admission and discharge for inpatient or residential treatment
shall be made in accordance with subdivision (d) of this section.
(d) Inpatient or residential treatment.
1. Admission procedures.
(i) A
copy of the patient's rights established under this section and under
section 22.03 of this article shall be given and explained to the minor
and to the minor's consenting parent or guardian at the time of
admission by the director of the facility or such person's designee.
(ii) The minor shall be required to sign a form indicating that the
treatment is being voluntarily sought, and that he or she has been
advised of his or her ability to access the mental hygiene legal service
and of his or her rights under this section and section 22.03 of this
article. The signed form shall be included in the minor's medical
record.
(iii) At the time of admission, any minor so admitted shall be
informed by the director of the facility or the director's designee,
orally and in writing, of the minor's right to be discharged in
accordance with the provisions of this section within twenty-four hours
of his or her making a request therefor.
(iv) Emergency contacts.
(A) At the time of admission, the provider of services shall use its best efforts to obtain from the minor's consenting parent or guardian a telephone number or numbers where he or she may be reached by the facility at any time during the day or night. In addition, such provider of services shall also use its best efforts to obtain from the parent or guardian a name, address and appropriate telephone number or numbers of an adult designated by such parent or guardian as an emergency contact person in the event the facility is unable to reach such parent or guardian.
(B) If the minor is admitted in accordance with subdivision (c) of this section, the provider of services shall use its best efforts to obtain from the minor the name, address, and telephone number of an adult who may serve as an emergency contact, and the facility shall verify the existence and availability of such contact upon notice to and with the prior written consent of the minor.
(C) Failure to obtain emergency contacts, after reasonable effort, in accordance with this section shall not preclude admission of the minor to treatment.
(v) Notice of admission and discharge procedures.
(A) A copy of the facility's admission and discharge procedures shall be provided to the minor and to the minor's consenting parent or guardian at the time of admission by the director of the facility or such person's designee. Such information shall also be mailed to the designated emergency contact person by regular mail.
(B) If the minor is admitted in accordance with subdivision (c) of this section, a copy of the facility's admission and discharge procedures shall be provided to the minor. Such information shall also be mailed to the designated emergency contact person by regular mail.
(vi) Each minor admitted for inpatient or residential chemical dependence treatment pursuant to this subdivision shall be provided with written notice regarding the availability of the mental hygiene legal service for legal counsel, and shall be provided access to the service upon request.
2. Discharge procedures. All minors admitted pursuant to this subdivision shall be discharged in accordance with the following:
(i) Any minor admitted to an inpatient or residential chemical dependence treatment facility has the right to be discharged within twenty-four hours of his or her request in accordance with the provisions of this subdivision.
(ii) If discharge is requested prior to completion of a minor's treatment plan, such minor must request discharge in writing.
(A) Upon receipt of any form of written request for discharge, the director of the facility in which the minor is admitted shall immediately notify the minor's parent or guardian. If the facility is unable to contact such parent or guardian within a reasonable time, or if the minor has been admitted pursuant to subdivision (c) of this section, the facility shall notify the designated emergency contact person.
(B) The minor shall not be discharged from such facility until it is determined:
(1) that the safety and well being of such minor will not be threatened or the expiration of twenty-four hours, whichever is sooner; or
(2) that the parent, guardian, or designated emergency contact person has made appropriate and timely departure arrangements with the facility. However, unless otherwise directed by the minor's parent or guardian or designated emergency contact person pursuant to this item,such minor shall be discharged within twenty-four hours after submission of the request.
(iii) Writing materials for use in requesting a discharge shall be made available at all times to all minors admitted under this section. The staff of the facility shall assist such minors in preparing or submitting requests for discharge.
§ 17. Release of medical records.
Upon the written request of any
competent patient, parent or guardian of an infant, a guardian appointed
pursuant to article eighty-one of the mental hygiene law, or conservator
of a conservatee, an examining, consulting or treating physician or
hospital must release and deliver, exclusive of personal notes of the
said physician or hospital, copies of all x-rays, medical records and
test records including all laboratory tests regarding that patient to
any other designated physician or hospital provided, however, that such
records concerning the treatment of an infant patient for venereal
disease or the performance of an abortion operation upon such infant
patient shall not be released or in any manner be made available to the
parent or guardian of such infant, and provided, further, that original
mammograms, rather than copies thereof, shall be released and delivered.
Either the physician or hospital incurring the expense of providing
copies of x-rays, medical records and test records including all
laboratory tests pursuant to the provisions of this section may impose a
reasonable charge to be paid by the person requesting the release and
deliverance of such records as reimbursement for such expenses,
provided, however, that the physician or hospital may not impose a
charge for copying an original mammogram when the original has been
released or delivered to any competent patient, parent or guardian of an
infant, a guardian appointed pursuant to article eighty-one of the
mental hygiene law, or a conservator of a conservatee and provided,
further, that any charge for delivering an original mammogram pursuant
to this section shall not exceed the documented costs associated
therewith. However, the reasonable charge for paper copies shall not
exceed seventy-five cents per page. A release of records under this
section shall not be denied solely because of inability to pay.
For the purposes of this section the term "laboratory tests" shall
include but not be limited to tests and examinations administered in
clinical laboratories or blood banks as those terms are defined in
section five hundred seventy-one of this chapter
* § 18. Access to patient information.
1. Definitions. For the purpose
of this section:
(a) "Committee" means a medical access review committee appointed
pursuant to subdivision four of this section.
(b) "Health care provider" or "provider" means a "health care
facility" or a "health care practitioner" as defined by this
subdivision.
(c) "Health care facility" or "facility" means a hospital as defined
in article twenty-eight of this chapter, a home care services agency as
defined in article thirty-six of this chapter, a hospice as defined in
article forty of this chapter, a health maintenance organization as
defined in article forty-four of this chapter, and a shared health
facility as defined in article forty-seven of this chapter.
(d) "Health care practitioner" or "practitioner" means a person
licensed under article one hundred thirty-one, one hundred thirty-one-B,
one hundred thirty-two, one hundred thirty-three, one hundred
thirty-six, one hundred thirty-nine, one hundred forty-one, one hundred
forty-three, one hundred forty-four, one hundred fifty-three, one
hundred fifty-four, one hundred fifty-six or one hundred fifty-nine of
the education law or a person certified under section twenty-five
hundred sixty of this chapter.
(e) "Patient information" or "information" means any information
concerning or relating to the examination, health assessment including,
but not limited to, a health assessment for insurance and employment
purposes or treatment of an identifiable subject maintained or possessed
by a health care facility or health care practitioner who has provided
or is providing services for assessment of a health condition including,
but not limited to, a health assessment for insurance and employment
purposes or has treated or is treating such subject, except
(i)
information and clinical records subject to the provisions of section
23.05 or 33.13 of the mental hygiene law,
(ii) personal notes and
observations of a health care practitioner, provided that such personal
notes and observations are maintained by the practitioner and not
disclosed by the practitioner to any other person after January first,
nineteen hundred eighty-seven,
(iii) information maintained by a
practitioner, concerning or relating to the prior examination or
treatment of a subject received from another practitioner, provided
however, that such information may be requested by the subject directly
from such other practitioner in accordance with the provisions of this
section, and
(iv) data disclosed to a practitioner in confidence by
other persons on the basis of an express condition that such data would
never be disclosed to the subject or other persons, provided that such
data has never been disclosed to any other person. If at any time such
personal notes and observations or such data is disclosed, it shall be
considered patient information for purposes of this section.
For
purposes of this subdivision, "disclosure to any other person" shall not
include disclosures made to practitioners as part of a consultation or
referral during the treatment of the subject, to persons reviewing
information or records in the ordinary course of ensuring that a
provider is in compliance with applicable quality of care, licensure or
accreditation standards, to an employee or official of a federal, state
or local agency for the sole purpose of conducting an audit in the
course of his or her official duties, to the statewide planning and
research cooperative system, to other persons pursuant to a court order,
to governmental agencies, insurance companies licensed pursuant to the
insurance law and other third parties requiring information necessary
for payments to be made to or on behalf of patients, to qualified
researchers, to the state board for professional medical conduct whensuch board requests such information in the exercise of its statutory function, to an insurance carrier insuring, or an attorney consulted by, a health care provider, or to a health maintenance organization certified pursuant to article forty-four of this chapter or licensed pursuant to the insurance law, or to the committee or a court pursuant to the provisions of this section. For purposes of this subdivision treatment of a subject shall not include diagnostic services, except mammography, performed by a practitioner at the request of another health care practitioner provided, however, that such information, and mammograms, may be requested by the subject directly from the practitioner at whose request such diagnostic services were performed, in accordance with the provisions of this section.
(f) "Personal notes and observations" means a practitioner's speculations, impressions (other than tentative or actual diagnosis) and reminders, provided such data is maintained by a practitioner.
(g) "Qualified person" means any properly identified subject; or a guardian appointed under article eighty-one of the mental hygiene law; or a parent of an infant; or a guardian of an infant appointed under article seventeen of the surrogate's court procedure act or other legally appointed guardian of an infant who may be entitled to request access to a clinical record under paragraph (c) of subdivision two of this section; or a distributee of any deceased subject for whom no personal representative, as defined in the estates, powers and trusts law, has been appointed; or an attorney representing a qualified person or the subject's estate who holds a power of attorney from the qualified person or the subject's estate explicitly authorizing the holder to execute a written request for patient information under this section. A qualified person shall be deemed a "personal representative of the individual" for purposes of the federal health insurance portability and accountability act of 1996 and its implementing regulations.
(h) "Subject" means an individual concerning whom patient information is maintained or possessed by a health care provider.
(i) "Treating practitioner" means the health care practitioner who has primary responsibility for the care of the subject within the health care facility or if such practitioner is unavailable, a practitioner designated by such facility.
2. Access by qualified persons.
(a) Subject to the provisions of subdivision three of this section, upon the written request of any subject, a health care provider shall provide an opportunity, within ten days, for such subject to inspect any patient information concerning or relating to the examination or treatment of such subject in the possession of such health care provider.
(b) Subject to the provisions of subdivision three of this section, upon the written request of the committee for an incompetent appointed pursuant to article seventy-eight of the mental hygiene law, a health care provider shall provide an opportunity, within ten days, for the inspection by such committee of any patient information concerning the incompetent subject in the possession of such health care provider.
(c) Subject to the provisions of subdivision three of this section and except as otherwise provided by law, upon the written request of a parent or guardian of an infant appointed pursuant to article seventeen of the surrogate's court procedure act, or any other legally appointed guardian, a health care provider shall provide an opportunity, within ten days, for such parent or guardian to inspect any patient information maintained or possessed by such provider concerning care and treatment of the infant for which the consent of such parent or guardian was obtained or where care was provided without consent in an emergencywhich was the result of accidental injury or the unexpected onset of serious illness; provided, however, that such parent or guardian shall not be entitled to inspect or make copies of any patient information concerning the care and treatment of an infant where the health care provider determines that access to the information requested by such parent or guardian would have a detrimental effect on the provider's professional relationship with the infant, or on the care and treatment of the infant, or on the infant's relationship with his or her parents or guardian.
(d) Subject to the provisions of subdivision three of this section, upon the written request of any qualified person, a health care provider shall furnish to such person, within a reasonable time, a copy of any patient information requested, and original mammograms requested, which the person is authorized to inspect pursuant to this subdivision.
(e) The provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider, provided, however, that a provider may not impose a charge for copying an original mammogram when the original has been furnished to any qualified person and provided, further, that any charge for furnishing an original mammogram pursuant to this section shall not exceed the documented costs associated therewith. However, the reasonable charge for paper copies shall not exceed seventy-five cents per page. A qualified person shall not be denied access to patient information solely because of inability to pay.
(f) A provider may place reasonable limitations on the time, place, and frequency of any inspections of patient information.
(g) In the event that a practitioner does not have space available to permit the inspection of patient information, the practitioner may, in the alternative, furnish a qualified person a copy of such information within ten days.
(h) A provider may request the opportunity to review the patient information with the qualified person requesting such information, but such review shall not be a prerequisite for furnishing the information.
(i) A provider may make available for inspection either the original or a copy of patient information.
3. Limitations on access.
(a) Upon receipt of a written request by a qualified person to inspect or copy patient information, a practitioner may review the information requested. Unless the practitioner determines pursuant to paragraph (d) of this subdivision that
(i) the requested review of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right to access to the information, or
(ii) the material requested is personal notes and observations, or the information requested would have a detrimental effect as defined in subdivision two of this section, review of such patient information shall be permitted or copies provided.
(b) Upon receipt of a written request by a qualified person to inspect patient information maintained by a facility, the facility shall inform the treating practitioner of the request. The treating practitioner may review the information requested. Unless the treating practitioner determines, pursuant to paragraph (d) of this subdivision that the requested review of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right of access to the information or would have a detrimental effect as defined in subdivision two of this section, review of such patient information shall be permitted or copies provided.
(c) A subject over the age of twelve years may be notified of any request by a qualified person to review his/her patient information, and, if the subject objects to disclosure, the provider may deny the request. In the case of a facility, the treating practitioner shall be consulted.
(d) The provider may deny access to all or a part of the information and may grant access to a prepared summary of the information if, after consideration of all the attendant facts and circumstances, the provider determines that
(i) the request to review all or a part of the patient information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right of access to the information, or would have a detrimental effect as defined in subdivision two of this section, or
(ii) the material requested is personal notes and observations. In conducting such review, the provider may consider, among other things, the following factors:
(i) the need for, and the fact of, continuing care and treatment;
(ii) the extent to which the knowledge of the information may be harmful to the health or safety of the subject or others;
(iii) the extent to which the information contains sensitive material disclosed in confidence to the practitioner or treating practitioner by family members, friends and other persons; (iv) the extent to which the information contains sensitive materials disclosed to the practitioner or the treating practitioner by the subject which would be injurious to the subject's relationships with other persons, except when the subject is requesting information concerning himself or herself; and
(v) in the case of a minor making a request for access pursuant to subdivision two of this section, the age of the subject.
(e) In the event of a denial of access, the qualified person shall be informed by the provider of such denial, and whether the denial is based on the reasonable expectation that release of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which outweighs the qualified person's right of access to the information or on the reasonable expectation that release of the information would have a detrimental effect as defined in subdivision two of this section, or on the basis that the materials sought to be reviewed constitute personal notes and observations, and of the qualified person's right to obtain, without cost, a review of the denial by the appropriate medical record access review committee. If the qualified person requests such review, the provider shall, within ten days of receipt of such request, transmit the information including personal notes and observations as defined herein, to the chairman of the appropriate committee with a statement setting forth the specific reasons for which access was denied. After an in camera review of the materials provided and after providing all parties a reasonable opportunity to be heard, the committee shall promptly make a written determination whether the requested review of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which outweighs the qualified person's right of access to the information pursuant to paragraph (d) of this subdivision or whether the requested review would have a detrimental effect as defined in subdivision two of this section, or whether all or part of the materials sought to be reviewed constitute personal notes and observations, and shall accordingly determine whether access to all or part of such materials shall be granted. In the event that the committee determines that the request for access shall be granted in whole or in part, the committee shall notify all parties and the provider shall grant access pursuant to such determination.
(f) In the event that access is denied in whole or in part because the requested review of information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right of access to the information, or would have a detrimental effect as defined in subdivision two of this section, the committee shall notify the qualified person of his or her right to seek judicial review of the provider's determination pursuant to this section: provided however, that a determination by the committee as to whether materials sought to be reviewed constitute personal notes and observations shall not be the subject of judicial review. Within thirty days of receiving notification of such decision, the qualified person may commence, upon notice, a special proceeding in supreme court for a judgment requiring the provider to make available the information for inspection or copying. The court upon such application and after an in camera review of the materials provided including the determination and record of the committee, and after providing all parties an opportunity to be heard, shall determine whether there exists a reasonable basis for the denial of access. The relief available pursuant to this section shall be limited to a judgement requiring the provider to make available to the qualified person the requested information for inspection or copying.
(g) Where the written request for patient information under this section is signed by a distributee of a deceased subject for whom a personal representative has not been appointed, or from the holder of a power of attorney from such a distributee, a copy of a certified copy of the certificate of death of the subject shall be attached to the written request.
(h) Where the written request for patient information under this section is signed by the holder of a power of attorney, a copy of the power of attorney shall be attached to the written request. A written request under this subdivision shall be subject to the duration and terms of the power of attorney.
(i) The release of patient information shall be subject to:
(i) article twenty-seven-F of this chapter in the case of confidential HIV-related information;
(ii) section seventeen of this article and sections twenty-three hundred one, twenty-three hundred six and twenty-three hundred eight of this chapter in the case of termination of a pregnancy and treatment for a sexually transmitted disease;
(iii) article thirty-three of the mental hygiene law; and
(iv) any other provisions of law creating special requirements relating to the release of patient information, including the federal health insurance portability and accountability act of 1996 and its implementing regulations.
4. Medical record access review committees. The commissioner shall appoint medical record access review committees to hear appeals of the denial of access to patient information as provided in paragraph (e) of subdivision three of this section. Members of such committees shall be appointed by the commissioner from a list of nominees submitted by statewide associations of providers in the particular licensed profession involved; provided, however, that, with respect to patient information maintained by a psychiatrist, the list of nominees shall be composed of psychiatrists. In the case of the licensed physicians, such association shall be the medical society of the state of New York. Such medical record access review committees shall consist of no less than three nor more than five licensed professionals. The commissioner shall promulgate rules and regulations necessary to effectuate the provisions of this subdivision.
5. Annual report. The commissioner shall submit an annual report on or before December thirty-first to the governor and the legislature. Such report shall include, but not be limited to, the number of requests for committee review of providers' denial of access and the committees' determinations thereon.
6. Disclosure to third persons. Whenever a health care provider, as otherwise authorized by law, discloses patient information to a person or entity other than the subject of such information or to other qualified persons, either a copy of the subject's written authorization shall be added to the patient information or the name and address of such third party and a notation of the purpose for the disclosure shall be indicated in the file or record of such subject's patient information maintained by the provider provided, however, that for disclosures made to government agencies making payments on behalf of patients or to insurance companies licensed pursuant to the insurance law such a notation shall only be entered at the time the disclosure is first made. This subdivision shall not apply to disclosure to practitioners or other personnel employed by or under contract with the facility, or to government agencies for purposes of facility inspections or professional conduct investigations. Any disclosure made pursuant to this section shall be limited to that information necessary in light of the reason for disclosure. Information so disclosed should be kept confidential by the party receiving such information and the limitations on such disclosure in this section shall apply to such party.
7. Applicability of federal law. Whenever federal law or applicable federal regulations affecting the release of patient information are a condition for the receipt of federal aid, and are inconsistent with the provisions of this section, the provisions of federal law or federal regulations shall be controlling.
8. Challenges to accuracy. A qualified person may challenge the accuracy of information maintained in the patient information and may require that a brief written statement prepared by him or her concerning the challenged information be inserted into the patient information. This statement shall become a permanent part of the patient information and shall be released whenever the information at issue is released. This subdivision shall apply only to factual statements and shall not include a provider's observations, inferences or conclusions. A facility may place reasonable restrictions on the time and frequency of any challenges to accuracy.
9. Waivers void. Any agreement by an individual to waive any right to inspect, copy or seek correction of patient information as provided for in this section shall be deemed to be void as against public policy and wholly unenforceable.
10. Nothing contained in this section shall restrict, expand or in any way limit the disclosure of any information pursuant to articles twenty-three, thirty-one and forty-five of the civil practice law and rules or section six hundred seventy-seven of the county law.
11. No proceeding shall be brought or penalty assessed, except as provided for in this section, against a health care provider, who in good faith, denies access to patient information. 12. Immunity from liability. No health care provider shall be subjected to civil liability arising solely from granting or providing access to any patient information in accordance with this section. * NB There are 2 § 18's